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Mixon v. The Golden Rule Insurance Co.

United States District Court, Fifth Circuit

January 22, 2014

LARRY R. MIXON, Plaintiff,


KEITH STARRETT, District Judge.

For the reasons stated below, the Court denies Defendant's Motion for Oral Argument and Hearing [45], grants in part and denies in part Defendant's Motion for Summary Judgment [25, 31], denies Defendant's Motion to Strike [36], grants Plaintiff's Motion to Appoint Expert Out of Time [41], and grants in part and denies in part the parties' joint Motion to Continue [47].


This is an insurance coverage dispute over the application of a short-term major medical policy's preexisting condition exclusion. During the first week of December 2011, Plaintiff experienced lower back pain while digging a hole. At that time, the pain was severe enough that it caused him to fall to his knees. He continued working as a deliveryman for the next week or two, still experiencing pain.

On December 13, 2011, he visited Peavy Chiropractic Clinic. On some days chiropractic treatment relieved Plaintiff's pain, and on others it did not. Plaintiff continued to receive chiropractic treatment for about a month. During the same period of time - on December 26, 2011 - he visited a general practitioner, Dr. Amanda Rice.

Dr. Rice recorded Plaintiff's description[1] of his symptoms:

This is a recurrent problem. The current episode started more than 1 month ago. The problem occurs intermittently. The pain is present in the lumbar spine. The quality of the pain is described as aching. The pain does not radiate. The pain is mild. The pain is the same all the time. The symptoms are aggravated by bending and position. Stiffness is present all day. Pertinent negatives include no abdominal pain, bladder incontinence, bowel incontinence, numbness, paresis, tingling or weakness. He has tried chiropractic manipulation, heat and analgesics for the symptoms. The treatment provided mild relief.

Dr. Rice wrote Plaintiff prescriptions for a painkiller and muscle relaxer, and she referred him to physical therapy.

After visiting Dr. Rice, Plaintiff discovered that his health insurance had terminated. Plaintiff's wife anticipated that he would be able to receive insurance coverage through her group policy in February 2012. So, on December 30, 2011, she submitted an application to Defendant for one month of short-term coverage beginning on January 1, 2012. Defendant issued a Short Term Major Medical Expense policy[2] to Plaintiff with an effective time period of January 1, 2012, through February 1, 2012.

Plaintiff continued to experience lower back pain, and his wife insisted that he seek further treatment. On January 11, 2012, Plaintiff saw Dr. Kerry Bernardo. After examining Plaintiff, Dr. Bernardo noted: "[T]his is not a nerve pinch type problem. It appears to be a primary muscle problem.... [W]e do need a set of plain films of the lumbar spine to be absolutely certain that there is not any evidence of instability in the lower back.... [I]f the films are satisfactory in appearance my recommendation would be a brief course of physical therapy...."[3] Accordingly, he ordered x-rays and wrote Plaintiff a prescription for a muscle relaxer.

Plaintiff's x-rays showed a compression fracture and other abnormalities, prompting Dr. Bernardo to call Plaintiff back in for an MRI on January 12, 2012. The MRI showed a "significant signal abnormality throughout the lumbar spine..., " suggesting "either metastasis, myeloma, or a myeloproliferative disorder." Plaintiff subsequently saw Dr. Silvarama Kotikalamudi, who provided a diagnosis of multiple myeloma in late January 2012. Plaintiff later underwent chemotherapy and a stem cell transplant.[4] His myeloma is currently in remission.

Defendant received claims from Plaintiff's medical providers for services provided between January 1, 2012, and February 1, 2012. After reviewing Plaintiff's medical records, Defendant denied the claims[5] on April 26, 2012. Defendant represented that it had Plaintiff's records "reviewed by a qualified doctor, " and that he "was of the opinion that [Plaintiff] received medical advice, diagnosis, care or treatment for what was ultimately diagnosed as multiple myeloma within the 6 months immediately preceding January 1, 2012, the effective date of [the] plan." Citing the policy's exclusion of preexisting conditions, Defendant denied the claims.

Plaintiff filed a Complaint [1-2] in the Circuit Court of Forrest County, Mississippi, asserting claims of breach of contract, negligence, gross negligence, bad faith, detrimental reliance, negligent misrepresentation, intentional and negligent infliction of emotional distress, and breach of the duty of good faith and fair dealing. Defendant removed the case [1] and eventually filed a Motion for Summary Judgment [25, 31], which is now ripe for review.

Defendant requested [45] a hearing and oral argument on the motion. Having reviewed the parties' briefs, the Court finds that a hearing and oral argument are not necessary.


Rule 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). "Where the burden of production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (punctuation omitted). The nonmovant "must come forward with specific facts showing that there is a genuine issue for trial." Id. (punctuation omitted). "An issue is material if its resolution could affect the outcome ...

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